ORDINANCE No. 179868

* Authorize contract with Foley Hoag LLP for legal services to challenge the federal Long Term 2 Enhanced Surface Water Treatment Rule (Ordinance)

The City of Portland ordains:

Section 1.  The Council finds:

1.  Portland’s Bull Run drinking water source is a highly protected and excellent quality water supply source meeting all current state and federal drinking water regulations and serving a large portion of the Portland metropolitan region and State of Oregon.  

2.  The federal Environmental Protection Agency (EPA) has issued a regulation known as the Long Term 2 Enhanced Surface Water Treatment Rule (LT2) that requires Portland to expend, according to 2002 estimates, $55 to $204 million in capital costs and millions more in annual operations and maintenance costs to modify the treatment of Bull Run drinking water to address an organism, Cryptosporidium, that occurs at only very low levels in this water source.

3.  In September 2003, the Citizens Panel on Bull Run Treatment, after 18 months of review of the proposed LT2 rule requirements and treatment options, found that the protected nature of the Bull Run watershed has effectively eliminated human and bovine sources of Cryptosporidium, and that there was an absence of evidence of transmission of Cryptosporidium via Bull Run water and concluded that “treatment will add only a small degree of safety to the Bull Run water supply – one that probably will not be measurable.”

4.  The LT2 rule further requires significant multimillion-dollar modifications to the city’s five open finished drinking water reservoirs in Mt. Tabor and Washington Parks either to bury the reservoirs, cover them or provide inactivation of viruses at the outlets of the reservoirs—measures which have been determined through an independent review panel process to be costly and undesirable when compared to alternative security measures.

5.  Resolution No. 36297 (March 2005) established that the City of Portland “will actively pursue, in collaboration with its community and government partners, regulatory or legislative alternatives to the Cryptosporidium treatment requirement included in the proposed Long Term 2 Enhanced Surface Water Treatment Rule.”

6.  Resolution No. 36237 (July 2004) established that the City of Portland would “develop and submit to the appropriate state or federal regulator agency a risk mitigation proposal for the City’s open finished drinking water reservoirs” consistent with the recommendations of the Mt. Tabor Open Reservoirs Independent Review Panel and the 2003 draft version of the LT2 rule.

7.  The EPA has eliminated the option of developing a state approved risk mitigation plan for open finished drinking water reservoirs in the final draft of the LT2 rule.

NOW, THEREFORE, the Council directs:

a.  The City Attorney is hereby authorized and directed to commence legal proceedings to challenge the legality and propriety of the Environmental Protection Agency’s Long Term 2 Enhanced Surface Water Treatment Rule.

b.  The City Attorney is hereby authorized to enter into an agreement, substantially in the form attached hereto as Attachment A, with Foley Hoag LLP for legal services to assist the City in its challenge.

c.  If applicable, the provisions of City Code Chapter 5.68 are waived.

d.  The Mayor and Auditor are authorized to draw and deliver checks chargeable to the Water Operating Fund for purposes of this agreement.

Section 2.  The Council declares that an emergency exists because a delay in commencing legal proceedings could impede the City’s ability to challenge the rule successfully. Therefore, this ordinance shall be in full force and effect from and after its passage by Council.

BACKING SHEET INFORMATION

AGENDA NO. 34-2006

ORDINANCE/RESOLUTION/COUNCIL DOCUMENT NO. 179868